senate Bill S3767C

2011-2012 Legislative Session

Relates to contracts governing debt obligations of foreign states

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Archive: Last Bill Status - In Committee


  • Introduced
  • In Committee
  • On Floor Calendar
    • Passed Senate
    • Passed Assembly
  • Delivered to Governor
  • Signed/Vetoed by Governor

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Actions

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Assembly Actions - Lowercase
Senate Actions - UPPERCASE
Jan 04, 2012 referred to judiciary
returned to senate
died in assembly
Jun 21, 2011 referred to ways and means
delivered to assembly
passed senate
ordered to third reading cal.1462
committee discharged and committed to rules
Jun 14, 2011 print number 3767c
amend and recommit to finance
Jun 01, 2011 reported and committed to finance
May 18, 2011 print number 3767b
amend and recommit to judiciary
May 13, 2011 print number 3767a
amend (t) and recommit to judiciary
Mar 03, 2011 referred to judiciary

Votes

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Jun 21, 2011 - Rules committee Vote

S3767C
13
8
committee
13
Aye
8
Nay
3
Aye with Reservations
0
Absent
0
Excused
0
Abstained
show Rules committee vote details

Jun 1, 2011 - Judiciary committee Vote

S3767B
15
2
committee
15
Aye
2
Nay
5
Aye with Reservations
0
Absent
1
Excused
0
Abstained
show committee vote details

Bill Amendments

Original
A
B
C (Active)
Original
A
B
C (Active)

S3767 - Bill Details

See Assembly Version of this Bill:
A7967A
Current Committee:
Law Section:
General Obligations Law
Laws Affected:
Add §5-336, Gen Ob L
Versions Introduced in 2011-2012 Legislative Session:
A7967A

S3767 - Bill Texts

view summary

Relates to contracts governing debt obligations of foreign states.

view sponsor memo
BILL NUMBER:S3767

TITLE OF BILL:
An act
to amend the
general obligations law, in relation to certain provisions of contracts
governing debt obligations of debt evading foreign states, agencies or
instrumentalities of debt evading foreign states and state-owned
corporations of debt evading foreign states

PURPOSE OF BILL:
This bill, as a matter of public policy of the state, will amend the
general obligations law with respect to certain provisions in
contracts governing the debt obligations of certain foreign states,
their agencies or instrumentalities, and their state owned
corporations, against whom final judgments of at least $100 million
have remained unpaid for two years (collectively "debt evading
foreign states"). It does so by providing that the provisions of a
contract governing a debt obligation of a debt evading foreign state,
which impose duties or obligations on the debt evading foreign state
which are not directly addressed in a final judgment in favor of the
holder of the debt obligation against the debt evading foreign state,
shall survive the entry of such final judgment and shall not be
merged into any such final judgment.

Under existing principles of New York common law, the merger doctrine
is not applied in a rigid manner that defeats a party's equitable
rights. As long recognized by the New York Court of Appeals, the
merger doctrine "will not be carried any further than the ends of
justice require" and "a judgment does not change the essential nature
and real foundation of the cause of action." Jay's Stores, Inc. v.
Ann Lewis Shops, Inc., 204 N.E.2d 638,642 (N.Y. 1965) (internal
quotations marks and cites omitted). Professor David D. Siegel has
interpreted New York common law as providing that "[i]f there is
anything about the underlying claim that offers the plaintiff some
advantage, it should retain its identity and peer right through the
judgment to make itself felt...
New York subscribes to the healthy view that the merger doctrine will
not be allowed to undermine benefits inhering in the claim merely
because it has gone to judgment... Indeed, when a claim has been
fully litigated, courts should be sensitive to see to it that the
judgment is a reward rather than a deprivation." David D. Siegel, New
York Practice § 450 at 725 (3d. ed. 1999).

Despite these longstanding principles, New York case law does not
precisely define the boundaries of the merger doctrine. This bill
does so with respect to debt evading foreign states by codifying the
above principles of New York common law to clarify that provisions of
any such contracts which benefit creditors of debt evading foreign
states by imposing duties or obligations and which are not directly
addressed in a final judgment in favor of the holder of the debt
obligation against the debt evading foreign state, shall survive the
entry of such final judgment and shall not be merged into any such
final judgment. As a result of this bill, courts that face
enforcement actions by holders of such debt obligations will have
more clarity as to the survival of provisions that aid in


enforcement. Loan and bond contracts entered into by foreign
sovereigns typically contain a wide range of covenants, and such
contracts are issued in New York, are governed by New York law, and
contain waivers of immunity and consents to suit in New York. It is
important to provide clarity as to the fact that, under
long-established principles of New York common law, covenants that
aid creditors in a post judgment and enforcement context are not
merged into
final judgments, but survive the entry of final judgment,
particularly as against a debt evading foreign state.

SUMMARY OF PROVISIONS:
Section 1 ensures as a matter of public policy that the contractual
duties and commitments of debt evading foreign states, other than
those addressed directly in a final judgment in favor of a holder of
such debt obligations against a debt evading foreign state, shall
survive the entry of final judgment against any such debt evading
foreign state and shall not be merged in any such final judgment.
Section 1 also defines the circumstances under which a foreign state
and its agencies, instrumentalities and state-owned corporations
become debt evading foreign states. Section 2 provides that the act
will take effect immediately and shall be applicable to all
unsatisfied judgments against debt evading foreign states..

JUSTIFICATION:
New York taxpayers have invested billions of dollars in debt issued by
foreign sovereigns. To facilitate the issuance of their debt to New
York citizens and other individuals through New York's capital
markets, many foreign sovereigns designate New York as the place of
payment and the venue where the foreign sovereign waives sovereign
immunity and consents to jurisdiction to be sued in the case of a
default. As a result, actions to enforce defaulted debt are
frequently brought in state and federal courts located in New York.
Although many foreign sovereigns pay their debts responsibly, some
foreign sovereigns that are capable of making payments to their
creditors instead choose to repudiate their debts and to refuse to
pay judgments rendered against them. Because of the difficulties
associated with enforcing judgments against foreign sovereigns, New
York taxpayers suffer significant losses, and have little legal
recourse, when foreign sovereigns choose not to pay their debts.
The losses incurred by taxpayers significantly affect New York tax
revenue, not only because New York cannot tax interest and other
gains that are not paid, but also because investors' losses can be
offset against other taxable gains.

The most egregious example of a foreign sovereign that is capable of
paying its debt, but that chooses not to, is the Republic of
Argentina. In 2001, Argentina defaulted on $81.2 billion of debt,
which is the largest sovereign debt default in history. Argentina
refused to negotiate with its bondholders until 2005, and then
offered the bondholders an exchange worth about 27-cents on the
dollar on a take-it-or-leave-it basis. Approximately 76 percent of
bondholders accepted the exchange offer, and Argentina repudiated the
remaining portion of its debt.
In 2010 Argentina made a new exchange offer, this time worth about
25-cents on the dollar on a take it or leave it basis, which
reportedly raised the percentage of bondholders that accepted one or


both of its exchange offers to about 92%. Argentina has repudiated
the remaining approximately $8 billion in defaulted debt, much of
which has been reduced to judgments against Argentina, despite
reporting that it holds over $54 billion in foreign reserves.

Dozens of lawsuits have been filed in the United States District Court
for the Southern District of New York as a result of the Argentine
debt default. The two largest creditors alone have claims and
judgments of over $3 billion. Judge Thomas P. Griesa, the most senior
judge in the Southern District, has repeatedly observed that
Argentina has never offered to pay the judgments rendered against it
and instead focused all of its efforts on protecting its assets from
creditors. In May 2009, Judge Griesa held that Argentina was in civil
contempt of court for failing to comply with court orders and drew an
adverse inference that Argentina had removed assets from New York in
violation of court orders.

The economic impact of this debt repudiation has been substantial. The
direct net costs to New York holders of defaulted Argentine debt
currently total $902 million, including $452 million in capital
losses, $382 million in foregone interest payments, and $180 million
in foregone investment returns, less nearly $112 million in tax
benefits created by the losses or foregone income. From December 2001
to December 2008, the indirect costs of the Argentine debt default,
through lost tax revenue, total approximately $329 million.

This bill will prevent debt evading foreign states such as Argentina
from evading the duties and obligations imposed on them in any
contract governing the defaulted debt of such debt evading foreign
state, by arguing that all such duties and obligations, other than
those directly addressed in final judgments against debt evading
foreign states in favor of holders of their defaulted debt, did not
survive the entry of the judgments against it and merged into such
final judgments.

LEGISLATIVE HISTORY:
New bill.

FISCAL IMPLICATIONS FOR STATE AND LOCAL GOVERNMENTS:
If debt evading foreign states such as Argentina are prevented from
potentially extinguishing contractual and judgment enforcement rights
by reason of the so-called merger doctrine, New York stands to
collect substantial tax revenue on recoveries by creditors and
judgment holders and to avoid the loss of tax revenue that arises
from tax deductions attributable to capital losses with respect to
unpaid debts.

EFFECTIVE DATE:
This act shall take effect immediately and shall be applicable to all
unsatisfied judgments against debt evading foreign states.

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                    S T A T E   O F   N E W   Y O R K
________________________________________________________________________

                                  3767

                       2011-2012 Regular Sessions

                            I N  S E N A T E

                              March 3, 2011
                               ___________

Introduced  by  Sen. BONACIC -- read twice and ordered printed, and when
  printed to be committed to the Committee on Judiciary

AN ACT to amend the general obligations  law,  in  relation  to  certain
  provisions  of  contracts  governing  debt obligations of debt evading
  foreign states, agencies or instrumentalities of debt evading  foreign
  states and state-owned corporations of debt evading foreign states

  THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:

  Section 1.  The general obligations law is amended  by  adding  a  new
section 5-336 to read as follows:
  S 5-336. SURVIVAL OF ENTRY OF FINAL JUDGMENT AND NON-MERGER INTO FINAL
JUDGMENT  OF  PROVISIONS OF CONTRACTS GOVERNING DEBT OBLIGATIONS OF DEBT
EVADING FOREIGN STATES, AGENCIES OR INSTRUMENTALITIES  OF  DEBT  EVADING
FOREIGN  STATES  AND  STATE  OWNED  CORPORATIONS OF DEBT EVADING FOREIGN
STATES AS A MATTER OF PUBLIC POLICY. 1. AS A MATTER  OF  PUBLIC  POLICY,
THE PROVISIONS OF A CONTRACT GOVERNING A DEBT OBLIGATION OF A DEBT EVAD-
ING  FOREIGN  STATE, AGENCY OR INSTRUMENTALITY OF A DEBT EVADING FOREIGN
STATE OR A STATE-OWNED CORPORATION  OF  A  DEBT  EVADING  FOREIGN  STATE
(COLLECTIVELY  "DEBT  EVADING  FOREIGN  STATE"),  THAT  ARE NOT DIRECTLY
ADDRESSED IN A FINAL JUDGMENT IN FAVOR OF THE HOLDER OF THE  DEBT  OBLI-
GATION  AGAINST THE FOREIGN STATE, SHALL SURVIVE THE ENTRY OF SUCH FINAL
JUDGMENT AND SHALL NOT BE MERGED INTO ANY SUCH  FINAL  JUDGMENT.    SUCH
PROVISIONS INCLUDE BUT ARE NOT LIMITED TO A PROVISION THAT:
  (A)  WAIVES THE IMMUNITY OF SUCH FOREIGN STATE WITH RESPECT TO ACTIONS
OR PROCEEDINGS, INCLUDING ACTIONS OR PROCEEDINGS TO  ENFORCE  ANY  FINAL
JUDGMENT ENTERED AGAINST SUCH FOREIGN STATE, BROUGHT BY ANY HOLDER BASED
UPON OR WITH RESPECT TO SUCH OBLIGATION; OR
  (B)  DESIGNATES  THE COURTS OR JURISDICTION TO WHICH THE FOREIGN STATE
WILL SUBMIT FOR PURPOSES OF SUIT,  OR  FOR  ACTIONS  OR  PROCEEDINGS  TO
ENFORCE ANY FINAL JUDGMENT; OR

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD09939-01-1

S. 3767                             2

  (C)  DESIGNATES  THE  CHOICE OF LAW SET FORTH IN ANY SUCH CONTRACT FOR
PURPOSES OF DETERMINING THE RIGHTS AND DUTIES OF THE PARTIES TO ANY SUCH
CONTRACT; OR
  (D)  OBLIGATES  THE FOREIGN STATE TO APPOINT AND MAINTAIN AN AGENT FOR
SERVICE OF PROCESS IN THE JURISDICTION TO WHICH THE  FOREIGN  STATE  HAS
SUBMITTED OR IN WHICH IT IS SUBJECT TO JURISDICTION; OR
  (E) COMMITS NOT TO CREATE OR PERMIT TO SUBSIST ANY LIEN, PLEDGE, MORT-
GAGE,  SECURITY  INTEREST, DEED OF TRUST, CHARGE OR OTHER ENCUMBRANCE OR
PREFERENTIAL ARRANGEMENT WHICH HAS THE PRACTICAL EFFECT OF  CONSTITUTING
A SECURITY INTEREST; OR
  (F)  COMMITS  THAT THE FOREIGN STATE'S DUTY TO MAKE PAYMENT WILL RANK,
AND PAYMENT WILL BE MADE, PARI PASSU, OR  AT  LEAST  EQUALLY,  WITH  ANY
OTHER PRESENT OR FUTURE PAYMENT OBLIGATION OF SUCH FOREIGN STATE.
  2. THE FOLLOWING TERMS AS USED IN THIS SECTION, SHALL HAVE THE FOLLOW-
ING MEANING UNLESS A DIFFERENT MEANING CLEARLY APPEARS FROM THE CONTEXT:
  (A)  "AGENCY  OR  INSTRUMENTALITY  OF  A FOREIGN STATE" SHALL MEAN ANY
ENTITY:
  (I) WHICH IS A SEPARATE LEGAL PERSON, CORPORATE OR OTHERWISE; AND
  (II) WHICH IS AN ORGAN OF A FOREIGN STATE OR A PROVINCE, OR ANY  POLI-
TICAL  SUBDIVISION  THEREOF;  OR A MAJORITY OF WHOSE SHARES OR ANY OTHER
OWNERSHIP INTEREST IS OWNED BY A FOREIGN STATE OR  A  PROVINCE,  OR  ANY
POLITICAL SUBDIVISION THEREOF; AND
  (III)  WHICH IS NEITHER A CITIZEN OF A STATE OF THE UNITED STATES, NOR
CREATED UNDER THE LAWS OF ANY THIRD COUNTRY.
  (B) "FINAL JUDGMENT" SHALL MEAN ANY JUDGMENT THAT IS NO LONGER  ELIGI-
BLE TO BE APPEALED TO ANY COURT.
  (C)  "FOREIGN STATE" INCLUDES A PROVINCE OR POLITICAL SUBDIVISION OF A
FOREIGN STATE.
  (D) "DEBT EVADING FOREIGN STATE" SHALL MEAN:
  (I) ANY FOREIGN STATE THAT:
  (A) HAS ONE OR MORE FINAL JUDGMENTS ENTERED AGAINST IT BY ANY STATE OR
FEDERAL COURT LOCATED  IN  THIS  STATE,  INCLUDING  ANY  FINAL  JUDGMENT
ORIGINALLY ISSUED IN A FOREIGN COURT THAT IS FILED OR REGISTERED IN THIS
STATE,  IN  THE  COMBINED  AMOUNT OF WHICH JUDGMENTS EXCEEDS ONE HUNDRED
MILLION DOLLARS;
  (B) FAILS TO SATISFY IN FULL ANY SUCH JUDGMENT FOR A  PERIOD  OF  MORE
THAN  TWO  YEARS AFTER THE JUDGMENT BECOMES A FINAL JUDGMENT, REGARDLESS
OF WHETHER SUCH JUDGMENT BECAME A FINAL JUDGMENT BEFORE THE DATE OF  THE
EFFECTIVE DATE OF THIS SECTION; AND
  (C) IS NOT A FOREIGN STATE ELIGIBLE FOR:
  (I)  FINANCING  THROUGH  THE  INTERNATIONAL  DEVELOPMENT  ASSOCIATION,
UNLESS SUCH STATE IS ELIGIBLE FOR FINANCING FROM THE INTERNATIONAL  BANK
FOR RECONSTRUCTION AND DEVELOPMENT; OR
  (II)  DEBT  RELIEF  UNDER  THE ENHANCED HIPC INITIATIVE, AS DEFINED IN
SECTION 1625(E)(3) OF THE UNITED STATES INTERNATIONAL  FINANCIAL  INSTI-
TUTIONS  ACT,  OR  DEBT RELIEF UNDER THE MULTILATERAL DEBT RELIEF INITI-
ATIVE OF THE INTERNATIONAL MONETARY FUND; AND
  (II) A PROVINCE OR POLITICAL SUBDIVISION OF A FOREIGN  STATE  REFERRED
TO IN SUBPARAGRAPH (I) OF THIS PARAGRAPH.
  (E)  "STATE-OWNED  CORPORATION  OF A DEBT EVADING FOREIGN STATE" SHALL
MEAN ANY CORPORATION OR ENTITY, OTHER THAN A NATURAL PERSON:
  (I) THAT IS AN AGENCY OR INSTRUMENTALITY OF A FOREIGN STATE THAT IS  A
DEBT EVADING FOREIGN STATE; OR
  (II)  THAT  A  MAJORITY  OF  THE SHARES OR OTHER OWNERSHIP INTEREST OF
WHICH IS HELD, EITHER DIRECTLY OR INDIRECTLY, BY A DEBT EVADING  FOREIGN

S. 3767                             3

STATE  OR  BY  AN AGENCY OR INSTRUMENTALITY OF A FOREIGN STATE THAT IS A
DEBT EVADING FOREIGN STATE.
  S 2. This act shall take effect immediately and shall be applicable to
all unsatisfied judgments against a debt evading foreign state.

S3767A - Bill Details

See Assembly Version of this Bill:
A7967A
Current Committee:
Law Section:
General Obligations Law
Laws Affected:
Add §5-336, Gen Ob L
Versions Introduced in 2011-2012 Legislative Session:
A7967A

S3767A - Bill Texts

view summary

Relates to contracts governing debt obligations of foreign states.

view sponsor memo
BILL NUMBER:S3767A

TITLE OF BILL:
An act
to amend the
general obligations law, in relation to certain provisions of contracts
governing debt obligations of foreign states

PURPOSE OF BILL:
This bill, as a matter of public policy of the state, will amend the
general obligations law with respect to certain provisions in
contracts governing the debt obligations of foreign states as defined
in Section 1603 of the Foreign Sovereign Immunities Act, 28 D.S.C.
1603. It does so by providing that the provisions of a contract
governing a debt obligation of a foreign state, which impose duties
or obligations on the foreign state which are not directly addressed
in a final judgment in favor of the holder of the debt obligation
against the foreign state, shall survive the entry of such final
judgment and shall not be merged into any such final judgment.

Under existing principles of New York common law, the merger doctrine
is not applied in a rigid manner that defeats a party's equitable
rights. As long recognized by the New York Court of Appeals, the
merger doctrine "will not be carried any further than the ends of
justice require" and "a judgment does not change the essential nature
and real foundation of the cause of action." Jay's Stores, Inc. v.
Ann Lewis Shops, Inc., 204 N.E.2d 638, 642 (N.Y. 1965) (internal
quotations marks and cites omitted). Professor David D. Siegel has
interpreted New York common law as providing that "[i]f there is
anything about the underlying claim that offers the plaintiff some
advantage, it should retain its identity and peer right through the
judgment to make itself felt.... New York subscribes to the healthy
view that the merger doctrine will not be allowed to undermine
benefits inhering in the claim merely because it has gone to
judgment. ... Indeed, when a claim has been fully litigated, courts
should be sensitive to see to it that the judgment is a reward rather
than a deprivation." David D. Siegel, New York Practice § 450 at 725
(3d. ed. 1999).

Despite these longstanding principles, New York case law does not
precisely define the boundaries of the merger doctrine. This bill
does so with respect to foreign states by codifying the above
principles of New York common law to clarify that provisions of any
contract governing the debt obligations of a foreign state that
benefit the creditors of the foreign state by imposing duties or
obligations not directly addressed in a final judgment in favor of
the holder of the debt obligation against the foreign state, shall
survive the entry of, and not be merged into, such final judgment. As
a result of this bill, courts adjudicating enforcement actions by
holders of foreign state debt obligations will be assured of the
survival of provisions that aid in enforcement.
Contracts governing the debt obligations of foreign sovereigns
typically contain a wide range of covenants for the benefit of
lenders, are governed by New York law, and contain waivers of
immunity and consents to suit in New York. In the context of creditor
actions against a foreign state in particular, it is important to


provide clarity that, under long-established principles of New York
common law, covenants that aid creditors in a post judgment
enforcement context are not merged into final judgments, but survive
the entry of judgment.

This bill is not intended to and does not affect the parameters of the
merger doctrine as developed under the common law by the courts in
actions in which foreign states are not parties. Specifically, the
expresio unius
rule - the rule that that which is affirmative is negative of that
which is not affirmed - shall not apply to, or be invoked in, actions
in which foreign states are not parties as a result of the enactment
of this bill.

SUMMARY OF PROVISIONS:
Section 1 ensures as a matter of public policy that the contractual
duties and commitments of foreign states contained in contracts
pursuant to which the foreign state borrows money, other than those
duties :nd commitments addressed directly in a final judgment in
favor of a holder of such debt obligations against a foreign state,
shall survive the entry of final judgment against any such foreign
state and shall not be merged in any such final judgment. Section 2
provides that the act will take effect immediately and shall be
applicable to all actions and proceedings pending on the effective
date.

JUSTIFICATION:
New York taxpayers have invested billions of dollars in debt issued by
foreign sovereigns. To facilitate the issuance of their debt to New
York investors through our capital markets, many foreign sovereigns
designate New York as the place of payment and the venue where the
foreign sovereign waives sovereign immunity and consents to
jurisdiction to be sued in the case of a default. As a result,
actions to enforce defaulted debt are frequently brought in state and
federal courts located in New York.

However, despite the fact that foreign sovereigns routinely tap the
capital market in New York, they are not subject to any bankruptcy
regime should they fail to pay their debts. There is no forum in
which the assets of a sovereign debtor are mandated to be made
available to satisfy its creditors in an orderly liquidation.
Although many foreign sovereigns pay their debts responsibly, some
foreign sovereigns that are capable of making payments to their
creditors instead choose to repudiate their debts and ignore
judgments rendered against them.
Because of the unique difficulties associated with enforcing judgments
against foreign sovereigns, and the absence of any available
bankruptcy mechanism, litigants who succeed in obtaining a judgment
are exposed to exceptional risk. For those reasons, New York should
remove any ambiguity and ensure that key contractual covenants
survive entry of judgment.

New York taxpayers suffer significant losses, and have little legal
recourse, when foreign sovereigns choose not to pay their debts. The
losses incurred by taxpayers significantly affect New York tax
revenue, not only because New York cannot tax interest and other


gains that are not paid, but also because investors' losses offset
other taxable gains.

The most egregious example of a foreign sovereign that is capable of
paying its debt, but that chooses not to, is the Republic of
Argentina. In 2001, Argentina defaulted on $81.2 billion of debt,
which is the largest sovereign debt default in history. Argentina
refused to negotiate with its bondholders until 2005, and then
offered the bondholders an exchange worth about 27-cents on the
dollar on a take-it-or-leave-it basis. Approximately 76 percent of
bondholders accepted the exchange offer, and Argentina repudiated the
remaining portion of its debt.
In 2010 Argentina made a new exchange offer, this time worth about
25-cents on the dollar on a take it or leave it basis, which
reportedly raised the percentage of bondholders that accepted one or
both of its exchange offers to about 92%. Argentina has repudiated
the remaining approximately $8 billion in defaulted debt, much of
which has been reduced to judgments against Argentina, despite
reporting that it holds over $54 billion in foreign reserves.

Dozens of lawsuits have been filed in the United States District Court
for the Southern District of New York as a result of the Argentine
debt default. The two largest creditors alone have claims and
judgments of over $3 billion. Judge Thomas P. Griesa, the most senior
judge in the Southern District, has repeatedly observed that
Argentina has never offered to pay the judgments rendered against it
and instead focused all of its efforts on protecting its assets from
creditors. In May 2009, Judge Griesa held that Argentina was in civil
contempt of court for failing to comply with court orders and drew an
adverse inference that Argentina had removed assets from New York in
violation of court orders.

The economic impact of this debt repudiation has been substantial. The
direct net costs to New York holders of defaulted Argentine debt
currently total $902 million, including $452 million in capital
losses, $382 million in foregone interest payments, and $180 million
in foregone investment returns, less nearly $112 million in tax
benefits created by the losses or foregone income. From December 2001
to December 2008, the indirect costs of the Argentine debt default,
through lost tax revenue, total approximately $329 million.

This bill will help prevent foreign states such as Argentina from
evading the duties and obligations imposed on them in any contract
governing the defaulted debt of such foreign state. The bill stops a
defaulting foreign sovereign from arguing that all such duties and
obligations, other than those directly addressed in final judgments
against foreign states in favor of holders of their defaulted debt,
did not survive the entry of the judgments against it and merged into
such final judgments. It will assist New York investors in holding
defaulting foreign sovereigns accountable.

LEGISLATIVE HISTORY:
New bill.

FISCAL IMPLICATIONS FOR STATE AND LOCAL GOVERNMENTS:
If states such as Argentina are prevented from potentially
extinguishing the contractual and judgment enforcement rights of


holders of its defaulted debt by reason of the so-called merger
doctrine, New York may collect substantial capital gains and avoid
the deduction from taxes of capital losses with respect to any
judgments that are satisfied by Argentina either by agreement or by
execution against its property.

EFFECTIVE DATE:
This act shall take effect immediately and shall be applicable to all
actions and proceedings pending on the effective date.

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                    S T A T E   O F   N E W   Y O R K
________________________________________________________________________

                                 3767--A

                       2011-2012 Regular Sessions

                            I N  S E N A T E

                              March 3, 2011
                               ___________

Introduced  by  Sen. BONACIC -- read twice and ordered printed, and when
  printed to be committed to the Committee  on  Judiciary  --  committee
  discharged, bill amended, ordered reprinted as amended and recommitted
  to said committee

AN  ACT  to  amend  the  general obligations law, in relation to certain
  provisions of contracts governing debt obligations of foreign states

  THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM-
BLY, DO ENACT AS FOLLOWS:

  Section  1.    The  general obligations law is amended by adding a new
section 5-336 to read as follows:
  S 5-336. SURVIVAL OF ENTRY OF FINAL JUDGMENT AND NON-MERGER INTO FINAL
JUDGMENT OF PROVISIONS OF CONTRACTS  GOVERNING  DEBT  OBLIGATIONS  OF  A
FOREIGN STATE.
  1.  AS A MATTER OF PUBLIC POLICY, THE PROVISIONS OF A CONTRACT GOVERN-
ING A DEBT OBLIGATION OF A FOREIGN STATE, AS DEFINED IN 28 UNITED STATES
CODE SECTION 1603, THAT ARE NOT DIRECTLY ADDRESSED IN A  FINAL  JUDGMENT
IN FAVOR OF THE HOLDER OF THE DEBT OBLIGATION AGAINST THE FOREIGN STATE,
SHALL  SURVIVE  THE ENTRY OF SUCH FINAL JUDGMENT AND SHALL NOT BE MERGED
INTO SUCH FINAL JUDGMENT. SUCH PROVISIONS INCLUDE BUT ARE NOT LIMITED TO
A PROVISION THAT:
  (A) WAIVES THE IMMUNITY OF SUCH FOREIGN STATE IN RESPECT OF ACTIONS OR
PROCEEDINGS, INCLUDING ACTIONS OR PROCEEDINGS TO ENFORCE ANY FINAL JUDG-
MENT ENTERED AGAINST SUCH FOREIGN STATE, BROUGHT  BY  ANY  HOLDER  BASED
UPON OR WITH RESPECT TO SUCH OBLIGATION; OR
  (B)  DESIGNATES  THE COURTS OR JURISDICTION TO WHICH THE FOREIGN STATE
HAS SUBMITTED FOR PURPOSES OF SUIT, OR FOR  ACTIONS  OR  PROCEEDINGS  TO
ENFORCE ANY FINAL JUDGMENT; OR
  (C)  DESIGNATES  THE  CHOICE OF LAW SET FORTH IN ANY SUCH CONTRACT FOR
PURPOSES OF DETERMINING THE RIGHTS AND DUTIES OF THE PARTIES TO ANY SUCH
CONTRACT; OR

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD09939-02-1

S. 3767--A                          2

  (D) OBLIGATES THE FOREIGN STATE TO APPOINT AND MAINTAIN AN  AGENT  FOR
SERVICE  OF  PROCESS  IN THE JURISDICTION TO WHICH THE FOREIGN STATE HAS
SUBMITTED OR IN WHICH IT IS SUBJECT TO JURISDICTION; OR
  (E) COMMITS NOT TO CREATE OR PERMIT TO SUBSIST ANY LIEN, PLEDGE, MORT-
GAGE,  SECURITY  INTEREST, DEED OF TRUST, CHARGE OR OTHER ENCUMBRANCE OR
PREFERENTIAL ARRANGEMENT WHICH HAS THE PRACTICAL EFFECT OF  CONSTITUTING
A SECURITY INTEREST; OR
  (F)  COMMITS  THAT THE FOREIGN STATE'S DUTY TO MAKE PAYMENT WILL RANK,
AND PAYMENT WILL BE MADE, PARI PASSU, OR  AT  LEAST  EQUALLY,  WITH  ANY
OTHER PRESENT OR FUTURE PAYMENT OBLIGATION OF SUCH FOREIGN STATE.
  2. FOR PURPOSES OF THIS SECTION, "FINAL JUDGMENT" SHALL MEAN ANY JUDG-
MENT THAT IS NO LONGER ELIGIBLE TO BE APPEALED TO ANY COURT.
  S 2. This act shall take effect immediately and shall be applicable to
all unsatisfied judgments against a debt evading foreign state.

S3767B - Bill Details

See Assembly Version of this Bill:
A7967A
Current Committee:
Law Section:
General Obligations Law
Laws Affected:
Add §5-336, Gen Ob L
Versions Introduced in 2011-2012 Legislative Session:
A7967A

S3767B - Bill Texts

view summary

Relates to contracts governing debt obligations of foreign states.

view sponsor memo
BILL NUMBER:S3767B

TITLE OF BILL:
An act
to amend the
general obligations law, in relation to certain provisions of contracts
governing debt obligations of foreign states

PURPOSE OF BILL:
This bill, as a matter of public policy of the state, will amend the
general obligations law with respect to certain provisions in
contracts governing the debt obligations of foreign states as defined
in Section 1603 of the Foreign Sovereign Immunities Act, 28 U.S.C.
1603. It does so by providing that the provisions of a contract
governing a debt obligation of a foreign state, which impose duties
or obligations on the foreign state which are not directly addressed
in a final judgment in favor of the holder of the debt obligation
against the foreign state, shall survive the entry of such final
judgment and shall not be merged into any such final judgment.

Under existing principles of New York common law, the merger doctrine
is not applied in a rigid manner that defeats a party's equitable
rights. As long recognized by the New York Court of Appeals, the
merger doctrine "will not be carried any further than the ends of
justice require" and "a judgment does not change the essential nature
and real foundation of the cause of action." Jay's Stores, Inc. v.
Ann Lewis Shops. Inc., 204 N.E.2d 638, 642 (N.Y. 1965) (internal
quotations marks and cites omitted). Professor David D. Siegel has
interpreted New York common law as providing that "[i]f there is
anything about the underlying claim that offers the plaintiff some
advantage, it should retain its identity and peer right through the
judgment to make itself felt. ... New York subscribes to the healthy
view that the merger doctrine will not be allowed to undermine
benefits inhering in the claim merely because it has gone to
judgment. ... Indeed, when a claim has been fully litigated, courts
should be sensitive to see to it that the judgment is a reward rather
than a deprivation." David D. Siegel, New York Practice § 450 at 725
(3d. ed. 1999).

Despite these longstanding principles, New York case law does not
precisely define the boundaries of the merger doctrine. This bill
does so with respect to foreign states by codifying the above
principles of New York common law to clarify that provisions of any
contract governing the debt obligations of a foreign state that
benefit the creditors of the foreign state by imposing duties or
obligations not directly addressed in a final judgment in favor of
the holder of the debt obligation against the foreign state, shall
survive the entry of, and not be merged into, such final judgment. As
a result of this bill, courts adjudicating enforcement actions by
holders of foreign state debt obligations will be assured of the
survival of provisions that aid in enforcement.

Contracts governing the debt obligations of foreign sovereigns
typically contain a wide range of covenants for the benefit of
lenders, are governed by New York law, and contain waivers of
immunity and consents to suit in New York. In the context of creditor
actions against a foreign state in particular, it is important to
provide clarity that, under long-established principles of New York
common law, covenants that aid creditors in a post judgment
enforcement context are not merged into final judgments, but survive
the entry of judgment.

This bill is not intended to and does not affect the parameters of the
merger doctrine as developed under the common law by the courts in
actions in which foreign states are not parties. Specifically, the
expresio unius
rule - the rule that that which is affirmative is negative of that
which is not affirmed - shall not apply to, or he invoked in, actions
in which foreign states are not parties as a result of the enactment
of this bill.

SUMMARY OF PROVISIONS:
Section 1 ensures as a matter of public policy that the contractual
duties and commitments of foreign states contained in contracts
pursuant to which the foreign state borrows money, other than those
duties and commitments addressed directly in a final judgment in favor
of a holder of such debt obligations against a foreign state, shall
survive the entry of final judgment against any such foreign state
and shall not be merged in any such final judgment.

Section 2 provides that the act will take effect immediately and shall
be applicable to all actions and proceedings pending on the effective
date.

JUSTIFICATION:
New York taxpayers have invested billions of dollars in debt issued by
foreign sovereigns. To facilitate the issuance of their debt to New
York investors through our capital markets, many foreign sovereigns
designate New York as the place of payment and the venue where the
foreign sovereign waives sovereign immunity and consents to
jurisdiction to be sued in the case of a default. As a result,
actions to enforce defaulted debt are frequently brought in state and
federal courts located in New York.

However, despite the fact that foreign sovereigns routinely tap the
capital market in New York, they are not subject to any bankruptcy
regime should they fail to pay their debts. There is no forum in
which the assets of a sovereign debtor are mandated to be made
available to satisfy its creditors in an orderly liquidation.
Although many foreign sovereigns pay their debts responsibly, some
foreign sovereigns that are capable of making payments to their
creditors instead choose to repudiate their debts and ignore
judgments rendered against them.
Because of the unique difficulties associated with enforcing judgments

against foreign sovereigns, and the absence of any available
bankruptcy mechanism, litigants who succeed in obtaining a judgment
are exposed to exceptional risk. For those reasons, New York should
remove any ambiguity and ensure that key contractual covenants
survive entry of judgment.

New York taxpayers suffer significant losses, and have little legal
recourse, when foreign sovereigns choose not to pay their debts. The
losses incurred by taxpayers significantly affect New York tax
revenue, not only because New York cannot tax interest and other
gains that are not paid, but also because investors' losses offset
other taxable gains.

The most egregious example of a foreign sovereign that is capable of
paying its debt, but that chooses not to, is the Republic of
Argentina. In 2001, Argentina defaulted on $81.2 billion of debt,
which is the largest sovereign debt default in history. Argentina
refused to negotiate with its bondholders until 2005, and then
offered the bondholders an exchange worth about 27-cents on the
dollar on a take-it-or-leave-it basis. Approximately 76 percent of
bondholders accepted the exchange offer, and Argentina repudiated the
remaining portion of its debt.
In 2010 Argentina made a new exchange offer, this time worth about
25-cents on the dollar on a take it or leave it basis, which
reportedly raised the percentage of bondholders that accepted one or
both of its exchange offers to about 92%. Argentina has repudiated
the remaining approximately $8 billion in defaulted debt, much of
which has been reduced to judgments against Argentina, despite
reporting that it holds over $54 billion in foreign reserves.

Dozens of lawsuits have been filed in the United States District Court
for the Southern District of New York as a result of the Argentine
debt default. The two largest creditors alone have claims and
judgments of over $3 billion. Judge Thomas P. Griesa, the most senior
judge in the Southern District, has repeatedly observed that
Argentina has never offered to pay the judgments rendered against it
and instead focused all of its efforts on protecting its assets from
creditors. In May 2009, Judge Griesa held that Argentina was in civil
contempt of
court for failing to comply with court orders and drew an adverse
inference that Argentina had removed assets from New York in
violation of court orders.

The economic impact of this debt repudiation has been substantial. The
direct net costs to New York holders of defaulted Argentine debt
currently total $902 million, including $452 million in capital
losses, $382 million in foregone interest payments, and $180 million
in foregone investment returns, less nearly $112 million in tax
benefits created by the losses or foregone income. From December 2001
to December 2008, the indirect costs of the Argentine debt default,
through lost tax revenue, total approximately $329 million.

This bill will help prevent foreign states such as Argentina from
evading the duties and obligations imposed on them in any contract
governing the defaulted debt of such foreign state. The bill stops a
defaulting foreign sovereign from arguing that all such duties and
obligations, other than those directly addressed in final judgments
against foreign states in favor of holders of their defaulted debt,
did not survive the entry of the judgments against it and merged into
such final judgments. It will assist New York investors in holding
defaulting foreign sovereigns accountable.

LEGISLATIVE HISTORY:
New bill.

FISCAL IMPLICATIONS FOR STATE AND LOCAL GOVERNMENTS:
If states such as Argentina are prevented from potentially
extinguishing the contractual and judgment enforcement rights of
holders of its defaulted debt by reason of the so-called merger
doctrine, New York may collect substantial capital gains and avoid
the deduction from taxes of capital losses with respect to any
judgments that are satisfied by Argentina either by agreement or by
execution against its property.

EFFECTIVE DATE:
This act shall take effect immediately and shall be applicable to all
actions and proceedings pending on the effective date.

view full text
download pdf
                    S T A T E   O F   N E W   Y O R K
________________________________________________________________________

                                 3767--B

                       2011-2012 Regular Sessions

                            I N  S E N A T E

                              March 3, 2011
                               ___________

Introduced  by  Sen. BONACIC -- read twice and ordered printed, and when
  printed to be committed to the Committee  on  Judiciary  --  committee
  discharged, bill amended, ordered reprinted as amended and recommitted
  to  said  committee  --  committee  discharged,  bill amended, ordered
  reprinted as amended and recommitted to said committee

AN ACT to amend the general obligations  law,  in  relation  to  certain
  provisions of contracts governing debt obligations of foreign states

  THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:

  Section 1.  The general obligations law is amended  by  adding  a  new
section 5-336 to read as follows:
  S 5-336. SURVIVAL OF ENTRY OF FINAL JUDGMENT AND NON-MERGER INTO FINAL
JUDGMENT  OF  PROVISIONS  OF  CONTRACTS  GOVERNING DEBT OBLIGATIONS OF A
FOREIGN STATE.
  1. AS A MATTER OF PUBLIC POLICY, THE PROVISIONS OF A CONTRACT  GOVERN-
ING A DEBT OBLIGATION OF A FOREIGN STATE, AS DEFINED IN 28 UNITED STATES
CODE  SECTION  1603, THAT ARE NOT DIRECTLY ADDRESSED IN A FINAL JUDGMENT
IN FAVOR OF THE HOLDER OF THE DEBT OBLIGATION AGAINST THE FOREIGN STATE,
SHALL SURVIVE THE ENTRY OF SUCH FINAL JUDGMENT AND SHALL NOT  BE  MERGED
INTO SUCH FINAL JUDGMENT. SUCH PROVISIONS INCLUDE BUT ARE NOT LIMITED TO
A PROVISION THAT:
  (A) WAIVES THE IMMUNITY OF SUCH FOREIGN STATE IN RESPECT OF ACTIONS OR
PROCEEDINGS, INCLUDING ACTIONS OR PROCEEDINGS TO ENFORCE ANY FINAL JUDG-
MENT  ENTERED  AGAINST  SUCH  FOREIGN STATE, BROUGHT BY ANY HOLDER BASED
UPON OR WITH RESPECT TO SUCH OBLIGATION; OR
  (B) DESIGNATES THE COURTS OR JURISDICTION TO WHICH THE  FOREIGN  STATE
HAS  SUBMITTED  FOR  PURPOSES  OF SUIT, OR FOR ACTIONS OR PROCEEDINGS TO
ENFORCE ANY FINAL JUDGMENT; OR
  (C) DESIGNATES THE CHOICE OF LAW SET FORTH IN ANY  SUCH  CONTRACT  FOR
PURPOSES OF DETERMINING THE RIGHTS AND DUTIES OF THE PARTIES TO ANY SUCH
CONTRACT; OR

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD09939-03-1

S. 3767--B                          2

  (D)  OBLIGATES  THE FOREIGN STATE TO APPOINT AND MAINTAIN AN AGENT FOR
SERVICE OF PROCESS IN THE JURISDICTION TO WHICH THE  FOREIGN  STATE  HAS
SUBMITTED OR IN WHICH IT IS SUBJECT TO JURISDICTION; OR
  (E) COMMITS NOT TO CREATE OR PERMIT TO SUBSIST ANY LIEN, PLEDGE, MORT-
GAGE,  SECURITY  INTEREST, DEED OF TRUST, CHARGE OR OTHER ENCUMBRANCE OR
PREFERENTIAL ARRANGEMENT WHICH HAS THE PRACTICAL EFFECT OF  CONSTITUTING
A SECURITY INTEREST; OR
  (F)  COMMITS  THAT THE FOREIGN STATE'S DUTY TO MAKE PAYMENT WILL RANK,
AND PAYMENT WILL BE MADE, PARI PASSU, OR  AT  LEAST  EQUALLY,  WITH  ANY
OTHER PRESENT OR FUTURE PAYMENT OBLIGATION OF SUCH FOREIGN STATE.
  2. FOR PURPOSES OF THIS SECTION, "FINAL JUDGMENT" SHALL MEAN ANY JUDG-
MENT THAT IS NO LONGER ELIGIBLE TO BE APPEALED TO ANY COURT.
  S 2. This act shall take effect immediately and shall be applicable to
all unsatisfied judgments against a foreign state.

S3767C (ACTIVE) - Bill Details

See Assembly Version of this Bill:
A7967A
Current Committee:
Law Section:
General Obligations Law
Laws Affected:
Add §5-336, Gen Ob L
Versions Introduced in 2011-2012 Legislative Session:
A7967A

S3767C (ACTIVE) - Bill Texts

view summary

Relates to contracts governing debt obligations of foreign states.

view sponsor memo
BILL NUMBER:S3767C

TITLE OF BILL:
An act
to amend the
general obligations law, in relation to certain provisions of contracts
governing debt obligations of foreign states

PURPOSE OF BILL:
This bill, as a matter of public policy of the state, will amend the
general obligations law with respect to certain provisions in
contracts governing the debt obligations of foreign states as defined
in Section 1603 of the Foreign Sovereign Immunities Act, 28 U.S.c.
1603. It does so by providing that the provisions of a contract
governing a debt obligation of a foreign state, which impose duties
or obligations on the foreign state which are not directly addressed
in a final judgment in favor of the holder of the debt obligation
against the foreign state, shall survive the entry of such final
judgment and shall not be merged into any such final judgment.

Under existing principles of New York common law, the merger doctrine
is not applied in a rigid manner that defeats a party's equitable
rights. As long recognized by the New York Court of Appeals, the
merger doctrine "will not be carried any further than the ends of
justice require" and "a judgment does not change the essential nature
and real foundation of the cause of action." Jay's Stores, Inc. v.
Ann Lewis Shops, Inc., 204 N.E.2d 638, 642 (N.Y. 1965) (internal
quotations marks and cites omitted). Professor David D. Siegel has
interpreted New York common law as providing that "[i]f there is
anything about the underlying claim that offers the plaintiff some
advantage, it should retain its identity and peer right through the
judgment to make itself felt. ... New York subscribes to the healthy
view that the merger doctrine will not be allowed to undermine
benefits inhering in the claim merely because it has gone to
judgment. ... Indeed, when a claim has been fully litigated, courts
should be sensitive to see to it that the judgment is a reward rather
than a deprivation." David D. Siegel, New York Practice § 450 at 725
(3d. ed. 1999).

Despite these longstanding principles, New York case law does not
precisely define the boundaries of the merger doctrine. This bill
does so with respect to foreign states by codifying the above
principles of New York common law to clarify that provisions of any
contract governing the debt obligations of a foreign state that
benefit the creditors of the foreign state by imposing duties or
obligations not directly addressed in a final judgment in favor of
the holder of the debt obligation against the foreign state, shall
survive the entry of, and not be merged into, such final judgment. As
a result of this bill, courts adjudicating enforcement actions by
holders of foreign state debt obligations will be assured of the
survival of provisions that aid in enforcement.
Contracts governing the debt obligations of foreign sovereigns
typically contain a wide range of covenants for the benefit of
lenders, are governed by New York law, and contain waivers of
immunity and consents to suit in New York. In the context of creditor
actions against a foreign state in particular, it is important to


provide clarity that, under long-established principles of New York
common law, covenants that aid creditors in a post judgment
enforcement context are not merged into final judgments, but survive
the entry of judgment.

This bill is not intended to and does not affect the parameters of the
merger doctrine as developed under the common law by the courts in
actions in which foreign states are not parties. Specifically, the
expresio unius
rule - the rule that that which is affirmative is negative of that
which is not affirmed - shall not apply to, or be invoked in, actions
in which foreign states are not parties as a result of the enactment
of this bill.

SUMMARY OF PROVISIONS:
Section 1 ensures as a matter of public policy that the contractual
duties and commitments of foreign states contained in contracts
pursuant to which the foreign state borrows money, other than those
duties and commitments addressed directly in a final judgment in
favor of a holder of such debt obligations against a foreign state,
shall survive the entry of final judgment against any such foreign
state and shall not be merged in any such final judgment.

Section 2 provides that the act will take effect immediately and shall
be applicable to all actions and proceedings pending on the effective
date.

JUSTIFICATION:
New York taxpayers have invested billions of dollars in debt issued by
foreign sovereigns. To facilitate the issuance of their debt to New
York investors through our capital markets, many foreign sovereigns
designate New York as the place of payment and the venue where the
foreign sovereign waives sovereign immunity and consents to
jurisdiction to be sued in the case of a default. As a result,
actions to enforce defaulted debt are frequently brought in state and
federal courts located in New York.

However, despite the fact that foreign sovereigns routinely tap the
capital market in New York, they are not subject to any bankruptcy
regime should they fail to pay their debts. There is no forum in
which the assets of a sovereign debtor are mandated to be made
available to satisfy its creditors in an orderly liquidation.
Although many foreign sovereigns pay their debts responsibly, some
foreign sovereigns that are capable of making payments to their
creditors instead choose to repudiate their debts and ignore
judgments rendered against them.
Because of the unique difficulties associated with enforcing judgments
against foreign sovereigns, and the absence of any available
bankruptcy mechanism, litigants who succeed in obtaining a judgment
are exposed to exceptional risk. For those reasons, New York should
remove any ambiguity and ensure that key contractual covenants
survive entry of judgment.

New York taxpayers suffer significant losses, and have little legal
recourse, when foreign sovereigns choose not to pay their debts. The
losses incurred by taxpayers significantly affect New York tax
revenue, not only because New York cannot tax interest and other


gains that are not paid, but also because investors' losses offset
other taxable gains.

The most egregious example of a foreign sovereign that is capable of
paying its debt, but that chooses not to, is the Republic of
Argentina. In 2001, Argentina defaulted on $81.2 billion of debt,
which is the largest sovereign debt default in history. Argentina
refused to negotiate with its bondholders until 2005, and then
offered the bondholders an exchange worth about 27-cents on the
dollar on a take-it-or-leave-it basis. Approximately 76 percent of
bondholders accepted the exchange offer, and Argentina repudiated the
remaining portion of its debt.
In 2010 Argentina made a new exchange offer, this time worth about
25-cents on the dollar on a take it or leave it basis, which
reportedly raised the percentage of bondholders that accepted one or
both of its exchange offers to about 92%. Argentina has repudiated
the remaining approximately $8 billion in defaulted debt, much of
which has been reduced to judgments against Argentina, despite
reporting that it holds over $54 billion in foreign reserves.

Dozens of lawsuits have been filed in the United States District Court
for the Southern District of New York as a result of the Argentine
debt default. The two largest creditors alone have claims and
judgments of over $3 billion. Judge Thomas P. Griesa, the most senior
judge in the Southern District, has repeatedly observed that
Argentina has never offered to pay the judgments rendered against it
and instead focused all of its efforts on protecting its assets from
creditors. In May 2009, Judge Griesa held that Argentina was in civil
contempt of
court for failing to comply with court orders and drew an adverse
inference that Argentina had removed assets from New York in
violation of court orders.

The economic impact of this debt repudiation has been substantial. The
direct net costs to New York holders of defaulted Argentine debt
currently total $902 million, including $452 million in capital
losses, $382 million in foregone interest payments, and $180 million
in foregone investment returns, less nearly $112 million in tax
benefits created by the losses or foregone income. From December 2001
to December 2008, the indirect costs of the Argentine debt default,
through lost tax revenue, total approximately $.329 million.

This bill will help prevent foreign states such as Argentina from
evading the duties and obligations imposed on them in any contract
governing the defaulted debt of such foreign state. The bill stops a
defaulting foreign sovereign from arguing that all such duties and
obligations, other than those directly addressed in final judgments
against foreign states in favor of holders of their defaulted debt,
did not survive the entry of the judgments against it and merged into
such final judgments. It will assist New York investors in holding
defaulting foreign sovereigns accountable.

LEGISLATIVE HISTORY:
New bill.

FISCAL IMPLICATIONS FOR STATE AND LOCAL GOVERNMENTS:


If states such as Argentina are prevented from potentially
extinguishing the contractual and judgment enforcement rights of
holders of its defaulted debt by reason of the so-called merger
doctrine, New York may collect substantial capital gains and avoid
the deduction from taxes of capital losses with respect to any
judgments that are satisfied by Argentina either by agreement or by
execution against its property.

EFFECTIVE DATE:
This act shall take effect immediately and shall be applicable to all
actions and proceedings pending on the effective date.

view full text
download pdf
                    S T A T E   O F   N E W   Y O R K
________________________________________________________________________

                                 3767--C

                       2011-2012 Regular Sessions

                            I N  S E N A T E

                              March 3, 2011
                               ___________

Introduced  by  Sen. BONACIC -- read twice and ordered printed, and when
  printed to be committed to the Committee  on  Judiciary  --  committee
  discharged, bill amended, ordered reprinted as amended and recommitted
  to  said  committee  --  committee  discharged,  bill amended, ordered
  reprinted as amended and recommitted to  said  committee  --  reported
  favorably  from  said  committee  and  committed  to  the Committee on
  Finance -- committee discharged, bill amended,  ordered  reprinted  as
  amended and recommitted to said committee

AN  ACT  to  amend  the  general obligations law, in relation to certain
  provisions of contracts governing debt obligations of foreign states

  THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM-
BLY, DO ENACT AS FOLLOWS:

  Section  1.    The  general obligations law is amended by adding a new
section 5-336 to read as follows:
  S 5-336. SURVIVAL OF ENTRY OF FINAL JUDGMENT AND NON-MERGER INTO FINAL
JUDGMENT OF PROVISIONS OF CONTRACTS  GOVERNING  DEBT  OBLIGATIONS  OF  A
FOREIGN STATE.
  1.  AS A MATTER OF PUBLIC POLICY, THE PROVISIONS OF A CONTRACT GOVERN-
ING A DEBT OBLIGATION OF A FOREIGN STATE, AS DEFINED IN 28 UNITED STATES
CODE SECTION 1603, THAT ARE NOT DIRECTLY ADDRESSED IN A  FINAL  JUDGMENT
IN FAVOR OF THE HOLDER OF THE DEBT OBLIGATION AGAINST THE FOREIGN STATE,
SHALL  SURVIVE  THE ENTRY OF SUCH FINAL JUDGMENT AND SHALL NOT BE MERGED
INTO SUCH FINAL JUDGMENT. SUCH PROVISIONS INCLUDE BUT ARE NOT LIMITED TO
A PROVISION THAT:
  (A) WAIVES THE IMMUNITY OF SUCH FOREIGN STATE IN RESPECT OF ACTIONS OR
PROCEEDINGS, INCLUDING ACTIONS OR PROCEEDINGS TO ENFORCE ANY FINAL JUDG-
MENT ENTERED AGAINST SUCH FOREIGN STATE, BROUGHT  BY  ANY  HOLDER  BASED
UPON OR WITH RESPECT TO SUCH OBLIGATION; OR
  (B)  DESIGNATES  THE COURTS OR JURISDICTION TO WHICH THE FOREIGN STATE
HAS SUBMITTED FOR PURPOSES OF SUIT, OR FOR  ACTIONS  OR  PROCEEDINGS  TO
ENFORCE ANY FINAL JUDGMENT; OR

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD09939-06-1

S. 3767--C                          2

  (C)  DESIGNATES  THE  CHOICE OF LAW SET FORTH IN ANY SUCH CONTRACT FOR
PURPOSES OF DETERMINING THE RIGHTS AND DUTIES OF THE PARTIES TO ANY SUCH
CONTRACT; OR
  (D)  OBLIGATES  THE FOREIGN STATE TO APPOINT AND MAINTAIN AN AGENT FOR
SERVICE OF PROCESS IN THE JURISDICTION TO WHICH THE  FOREIGN  STATE  HAS
SUBMITTED OR IN WHICH IT IS SUBJECT TO JURISDICTION; OR
  (E) COMMITS NOT TO CREATE OR PERMIT TO SUBSIST ANY LIEN, PLEDGE, MORT-
GAGE,  SECURITY  INTEREST, DEED OF TRUST, CHARGE OR OTHER ENCUMBRANCE OR
PREFERENTIAL ARRANGEMENT WHICH HAS THE PRACTICAL EFFECT OF  CONSTITUTING
A SECURITY INTEREST; OR
  (F) CONCERNS A PARI PASSU CLAUSE.
  2. FOR PURPOSES OF THIS SECTION, "FINAL JUDGMENT" SHALL MEAN ANY JUDG-
MENT THAT IS NO LONGER ELIGIBLE TO BE APPEALED TO ANY COURT.
  S 2. This act shall take effect immediately and shall be applicable to
all unsatisfied judgments against a foreign state.

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